IN THE CASE OF:	Mr. 

      BOARD DATE:  	11 September 2013

      CASE NUMBER:  	AR20130004087
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  .  The applicant requests to upgrade his characterization of service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, he did not have a clue he was being discharged as he was told the paperwork was cancelled.  He received an Article 15 punishment which consisted of a loss of rank and extra duty for being AWOL.  His wife was sick at the time, so he took the time but that is no excused.  He takes full responsibility for his actions.  He was informed he could move his family back to Fort Lewis and get housing, and so he did when he was told his paperwork was cancelled.  However, all of a sudden, he was told he had two days to clear and wasn’t really aware of what was going on.  He was informed he was being discharged on a hardship basis but his DD Form 214 reflects misconduct (AWOL).  If his discharge is upgraded, he can continue his one and true passion, which is a military career.  He regrets and has learned from his mistakes.  He is a better husband and father because of it.  He hopes to get another chance to prove himself and to his country that he is a changed man.  Additionally, his discharge was improper because he was punished twice for a single mistake.  He was not aware of what he was signing at the time of his discharge or if he could even fight the case.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	25 February 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	21 August 2008
	d.	Reason/Authority/SPD/RE Code:	Misconduct (AWOL), AR 635-200, Paragraph 14-
			12c(1), JKD, RE-3 
	e.	Unit of assignment:	54th MP Co, FOB Rustamiyah, Iraq
	f.	Current Enlistment Date/Term:	7 February 2006, 5 years
	g.	Current Enlistment Service:	2 years, 4 months, 10 days 
	h.	Total Service:	2 years, 4 months, 10 days
	i.	Time Lost:	66 days 
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	31B10, Military Police
	m.	GT Score:	105
	n.	Education:	HS Graduate 
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (070514-071101), (080107-080723) 
	q.	Decorations/Awards:	NDSM; GWOTSM; ICMw/BSS; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No 



SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 7 February 2006, for a period of 5 years.  He was 22 years old at the time of entry and a high school graduate.  He served in Iraq.  He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police.  His record documents no acts of valor or significant achievement.  He completed 2 years, 4 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 June 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense) for receiving a Field Grade Article 15 (081228) for deserting the Army with the intent to not return.  

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 16 June 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 22 July 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 21 August 2008, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(1), AR 635-200, for misconduct (AWOL), a Separation Program Designator code (SPD) of JKD and an RE code of 3.   

6.  The applicant's record shows he was absent without leave (AWOL) during the period 2 November 2007 through 6 January 2008, for a total of 66 days.  Information on the mode of return is not in file.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 28 January 2008, desertion (071029-080105), disobeying an NCO (070718).  The punishment consisted of reduction to the grade of E-1, 45 days of extra duty and restriction, (FG). 

2.  Four negative counseling statements dated between  20 July 2007 and 12 March 2008, for being processed for involuntary separation and insubordination; disobeying orders; AWOL and missing movement; and disrespecting an NCO.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (AWOL).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKD" will be assigned an RE Code of 3.



DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the reentry code was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the reentry code.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the AWOL misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice (UCMJ) and several negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends his discharge was improper because he was punished twice for a single mistake.  However, the contention he may have been punished twice for the same offense, a single mistake, once by the Article 15 and then subsequently by the discharge under current review are viewed as two separate processes:

	a.	Article 15 punishment is a punitive process for committing offenses in violations of the Uniformed Code of Military Justice.  In the applicant’s case, he received punishment for violating Article 85, desertion and Article 91, disobeying an NCO, under Article 15, in violations of the UCMJ.

	b.	The involuntary discharge is an administrative discharge process under AR 635-200 that sets forth the basic authority for the separation of enlisted personnel.  The record reflects the applicant was discharged under Chapter 14, which establishes policy and prescribes procedures for separating members for misconduct.  

5.  Furthermore, regarding the applicant’s contention of a single mistake, although a single incident being the basis for his administrative discharge and not considered a punitive action, the discrediting entry of his misconduct constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  The applicant contends that he was having family issues that ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

7.  The applicant has expressed his desire to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.

8.  The applicant contends he was not aware he was being discharged and the type of discharge he was receiving.  However, the record reflects he was fully aware of his discharge, as indicated by the unit commander informing him on 16 June 2008, of the initiation of his separation with a recommendation for a general, under honorable conditions discharge and advising him of his rights.  The record further reflects that on the same date, the applicant consulted with legal counsel, who advised him of the impact of the discharge action and the applicant elected not to submit a statement on his own behalf when he made his election of rights.  

9.  Accordingly, the record reflects the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(1), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (AWOL)," and the separation code is "JKD."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.

10.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

11.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.





SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  11 September 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  	NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130004087



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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